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LIBERTY.il. 


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N  iNTlsRPKB'i^ATION  OF  THE  PRINCIPLES 


OF  OUR  CONSTrrUTIONAL  GOVERNMENT  BY 


Wi:LLIA2d  HOWARD  TAFT 


UC-NRLF 


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With  the  Compliments  of 

YALE  UNIVERSITY  LIBRARY 

NEW  HAVEN,  CONN.,  U.  S.  A. 


LIBERTY   UNDER  LAW 

•      • 

THE  CUTLER  LECTURE 
FOR  1921 


LIBERTY  UNDER  LAY/ 

AN  INTERPRETATION  OF  THE 
PRINCIPLES  OF  OUR  CONSTI- 
TUTIONAL GOVERNMENT 

BY 
WILLIAM  HOWARD  TAFT 


NEW   HAVEN:   PUBLISHED   FOR 
THE   UNIVERSITY  OF   ROCHESTER 
BY  THE  YALE  UNIVERSITY  PRESS 

LONDON  •  HUMPHREY  MILFORD  •  OXFORD  UNIVERSITY  PRESS 

MDCCCCXXII 


T3 


Copyright  1922  by 
Yale  University  Press 


THE   CUTLER  LECTURES 


ESTABLISHED  IN 

THE  UNIVERSITY  OF  ROCHESTER 

BY  JAMES  GOOLD  CUTLER 


It  appears  to  me  that  the  most  useful  contribution 
which  I  can  make  to  promote  the  making  of  democ- 
racy safe  for  the  world  (to  invert  Mr.  Wilson's  apho- 
rism) is  to  found  in  The  University  of  Rochester,  a 
course  of  lectures,  designed  to  promote  serious  con- 
sideration, and  consideration  by  as  many  people  as 
possible,  of  certain  points  fundamental,  and  there- 
fore vital,  to  the  permanence  of  constitutional  gov- 
ernment in  the  United  States. 

My  basic  proposition  is  that  our  political  system 
breaks  down,  when  and  where  it  fails,  because  of 
lack  of  a  sound  education  of  the  people  for  whom  and 
by  whom  it  is  intended  to  be  carried  on : 

(a)  In  its  principles ; 

(b)  In  its  historical  development  as  illustrating 
the  application  of  it  to  and  under  changing  condi- 
tions, and 

(c)  In  those  moral  standards,  perhaps  best  to  be 
developed  in  religious  teaching  but  not  safely  to  be 
separated  entirely  from  University  work. 

FROM  MR.  cutler's  LETTER  TO  THE  PRESIDENT  OF  THE 
UNIVERSITY 


4G8639 


LIBERTY   UNDER   LAW 

AN  INTERPRETATION  OF  THE 
PRINCIPLES  OF  OUR  CONSTI- 
TUTIONAL GOVERNMENT 


Mr.  Cutler,  the  public-spirited  donor 
of  this  Lecture  Foundation,  in  the  letter 
establishing  it,  expressed  the  view  that 
where  our  political  system  shows  weak- 
ness, it  fails  for  lack  of  sound  education 
of  our  people: 

(1)  In  the  principles  of  our  Constitu- 
tional Government; 

(2)  In  the  history  of  its  development 
and  its  application  to  changing  condi- 
tions, and 

(3)  In  the  moral  standards  best  de- 
veloped in  religious  teaching  and  not 
safely  to  be  separated  from  university 
work.  He,  therefore,  concluded  that  the 
most  useful  contribution  he  could  make, 
to  render  democracy  safe  for  the  world, 
was  to  found  a  course  of  lectures  to  pro- 


8  l.[BEIiTY  UNDER  LAW 

mote  serious  consideration  by  as  many- 
people  as  possible  of  the  fundamental 
and  vital  elements  of  permanence  in  the 
Constitutional  Government  in  the  United 
States.  I  am  proud  to  have  been  selected 
as  the  first  speaker  in  this  course. 

Accepting  the  language  of  the  gift  as 
the  text  for  this  opening  lecture,  we  must 
examine  what  is  the  true  nature  of  our 
Constitutional  Government  as  a  means  of 
judging  what  is  needed  to  preserve  it. 

The  Constitution  of  the  United  States 
was  not  born  as  Minerva  is  said  to  have 
been,  full  armed  from  the  brain  of  Jove. 
No  great  and  abiding  institution  ever  is. 
It  was  the  first  written  constitution  of  an 
independent  nation  which,  after  creating 
its  governmental  organization  and  the 
agencies  by  which  it  was  to  be  carried  on, 
imposed  on  those  agencies  effective  limita- 
tions of  their  powers  by  creating  machin- 
ery for  enforcing  most  of  them.  It  recog- 
nized the  ultimate  power  in  the  people  of 
the  United  States  and  in  their  name  pro- 


LIBERTY  UNDER  LAW  9 

ceeded  to  frame  restrictions  upon  them- 
selves as  to  how  they  might  exercise  their 
power  through  their  appointed  or  elected 
agencies.  In  independent  nations,  this  was 
a  new  conception;  but  it  was  not  a  long 
step  from  the  kind  of  popular  -  govern- 
ment which  the  colonies,  the  predecessors 
of  the  states,  had  had  in  exercising  their 
powers  under  royal  charters.  Here  the 
framers  of  the  Federal  Constitution 
found  the  suggestion  of  a  written  and  de- 
fined form  of  government  and  of  the  en- 
forcement of  the  limitations  of  its  power. 
Whenever  they  departed  from  their 
charters,  the  British  Government  held 
such  departures  of  no  effect.  It  was  easy 
with  this  experience  for  the  people  who 
were  the  makers  of  the  new  nation  to  take 
the  steps,  first,  of  prescribing  in  written 
compact  the  character  of  the  government 
to  be  formed,  and,  second,  of  imposing  on 
themselves  the  formal  restraints  by  which 
they  should  be  made  to  keep  within  the 
terms  of  that  compact. 


10  LIBERTY  UNDER  LAW 

The  second  feature  of  the  Constitution 
having  a  novel  aspect  was  its  federal 
character.  This  was  forced  on  the  Con- 
vention. The  Revolution  had  been  won  by 
the  states  who  had  succeeded  the  colonies 
and  who,  after  winning  independence, 
lived  along  from  1783  to  1787  under  the 
weak  articles  of  the  Confederation  in  re- 
lations and  conditions  going  from  bad  to 
worse  until,  in  spite  of  the  bitter  jealousies 
between  them,  they  joined  in  an  effort  to 
improve  the  loose  bond  which  the  articles 
furnished.  The  states  would  not  merge 
themselves  in  one  government  and  the 
federation  plan  was  adopted  to  retain 
local  self-government  and  sovereignty  in 
the  states  and  yet  to  create  out  of  the 
people  of  the  states  a  nation  having  all 
needed  functions  for  national  purposes, 
and  presenting  a  unit  front  to  the  world 
in  international  matters.  There  had  been 
federations  before,  but  never  one  in  which 
the  central  government  was   so   clearly 


LIBERTY  UNDER  LAW  11 

national,  and  had  its  life  and  being  so 
directly  in  all  the  people. 

The  third  feature  of  the  Government 
under  the  Federal  Constitution  was  its 
purely  representative  character.  It  vested 
the  ultimate  power  in  the  people,  but  it 
secured  to  them  the  exercise  of  that  power 
only  through  representatives.  The  selec- 
tion of  the  President  was  not  put  directly 
in  the  people  but  in  an  electoral  college, 
members  of  which  were  to  be  appointed 
by  the  states  in  any  way  a  state  thought 
fit.  The  Senate  was  made  up  of  two  repre- 
sentatives from  each  state,  large  and 
small,  and  was  not  to  be  directly  elected 
by  the  people  but  by  the  state  legislatures. 
The  House  of  Representatives  was  the 
only  branch  of  the  Government  whose 
members  were  to  be  chosen  directly  and 
in  numerical  proportion  by  the  people. 
The  judges  were  to  be  appointed  by  the 
President  and  so  were  all  the  executive 
subordinates  of  the  President.  It  is  true 
that  since  the  Constitution  was  adopted, 


12  LIBERTY  UNDER  LAW 

the  Electoral  College,  which  was  created 
in  order  that  its  members  might  exercise 
their  judgment  as  to  the  man  to  be  se- 
lected as  President,  has  in  fact  lost  this 
power  and  is  only  an  instrumentality  for 
registering  the  people's  vote  as  between 
previously  ascertained  candidates  with  a 
weight  proportioned  to  the  population  of 
the  states.  The  members  of  the  Senate, 
too,  are  now  directly  elected  by  the 
people. 

The  slightest  study  of  the  history  of  the 
framing  of  the  Constitution  shows  that 
the  members  of  the  Convention  in  large 
majority  thought  that  the  permanence 
and  safety  of  the  new  government  re- 
quired provisions  which  should  prevent  a 
change  of  policy  to  meet  every  temporary 
wind  of  popular  passion.  The  checks  and 
balances  between  the  popular  will  and  its 
ultimate  control  created  by  our  Federal 
Constitution  are  greater  than  with  most 
popular  governments.  The  rigid  term  of 
four  years,  by  which  the  Executive  re- 


LIBERTY  UNDER  LAW  13 

mains  in  power  no  matter  how  strongly 
the  people  may  give  their  verdict  against 
him  in  the  mid-term  Congressional  elec- 
tion, the  six-year  term  of  each  of  the 
Senators,  arranged  in  three  classes,  so 
that  only  one-third  of  the  Senate  can  be 
changed  every  two  years,  and  even  the 
certain  full  tw^o  years  of  each  House 
of  Representatives,  however  great  the 
change  in  popular  sentiment  in  a  year, 
all  make  a  contrast  to  what  is  called  Re- 
sponsible Government,  like  that  in  Great 
Britain,  France,  Canada,  and  other  coun- 
tries. Certainly,  we  are  not  a  pure  democ- 
racy governing  by  direct  action,  and  the 
great  men  who  framed  our  fundamental 
law  did  not  intend  that  we  should  be. 

The  Constitution  makers  had  it  in  mind 
to  secure  individual  liberty,  the  right  of 
personal  and  religious  freedom,  of  prop- 
erty, and  the  pursuit  of  happiness.  These 
include  the  right  of  labor  and  of  contract, 
and  the  protection  against  deprivation  of 
any  of  them  save  by  due  process  of  law. 


14  LIBERTY  UNDER  LAW 

This  protection  was  granted  primarily 
against  the  National  Government  and 
many  forms  are  made  sacred  in  the  ad- 
ministration of  federal  justice  which  Con- 
gress cannot  transgress  or  ignore.  In  the 
Constitution  as  originally  adopted  not 
much  federal  protection  was  afforded 
against  state  action  infringing  individual 
liberty  of  the  individual  except  that  the 
states  were  forbidden  to  pass  laws  im- 
pairing the  obligations  of  a  contract ;  but, 
as  a  result  of  the  Civil  War,  the  desire  to 
protect  the  negro  in  his  new  freedom  led 
to  the  adoption  of  the  thirteenth,  four- 
teenth and  fifteenth  amendments,  by 
which  many  individual  rights  were  put 
under  federal  protection  as  against  a 
violation  of  them  by  the  state  executives, 
legislatures  and  courts.  The  Federal 
Constitution  today,  therefore,  guards  a 
man  in  the  enjoyment  of  his  personal 
liberty,  his  property  and  his  pursuit  of 
happiness,  whether  violated  by  the  Fed- 
eral or  State  Government.  Thus  are  pre- 


LIBERTY  UNDER  LAW  16 

served  to  the  individual  that  liberty  of 
action  and  that  equality  of  opportunity 
which  it  took  a  thousand  years  of  struggle 
to  secure  from  monarchy  and  aristocracy. 
The  judicial  branch  of  the  Federal  Gov- 
ernment is  vested  with  the  final  duty  and 
power  of  making  effective  this  protection 
of  the  individual  in  his  right  against  the 
sovereign  people. 

The  last  feature  of  our  Constitutional 
Government  which  we  need  notice  is  the 
machinery  for  its  amendment.  To  change 
it,  two-thirds  of  each  House  of  Congress, 
and  the  legislatures  of  three-fourths  of 
the  states  must  concur.  This  is  not  a 
referendum  to  the  people.  It  is  a  referen- 
dum to  the  people's  representatives.  We 
may  reasonably  infer  that  the  framers  of 
the  Constitution  did  not  intend  to  have 
our  fundamental  law  amended  by  any 
temporary  wave  of  popular  frenzy. 

When  the  Constitution  was  adopted, 
the  proportion  of  the  electorate  to  the 
whole  population  was  much  smaller  than 


16  LIBERTY  UNDER  LAW 

it  is  now.  "We  the  people,"  who  ordained 
and  estabhshed  the  Constitution,  were  not 
more  than  150,000  voters  in  the  thirteen 
states  which  had  then  a  population  of 
four  million,  including  men,  women  and 
children.  This  was  due  to  the  required 
qualifications  for  voting  which,  in  many- 
states,  included  not  only  the  ownership  of 
property  but  also  religious  conformity, 
and  excluded  women,  children  and  slaves. 
The  steady  trend  since  that  day  has  been 
toward  an  enlargement  of  the  electorate, 
so  that  today  we  are  a  much  more  popular 
government  than  we  were  under  Wash- 
ington. Property  and  religious  qualifica- 
tions have  all  disappeared.  The  greater 
the  number  of  the  governed  who  can  take 
part  in  the  Government,  the  juster  it  is 
likely  to  be  to  each  group  or  class,  and  so 
the  stronger  and  more  permanent  it  will 
become,  assuming  that  all  are  sufficiently 
intelligent  to  know  what  their  interests 
are.  A  small  ratio  of  voters  to  the  popula- 
tion does  not  necessarily,  however,  make 


LIBERTY  UNDER  LAW  17 

an  aristocracy.  It  was  not  true,  for  in- 
stance, that  in  the  past  women  had  no 
voice  in  the  Government.  They  did  have. 
They  were  represented  by  the  men  of  their 
family  and  were  willing  to  be  so  repre- 
sented. Their  identity  with  their  hus- 
bands, fathers  and  brothers  in  the  interest 
of  the  family  unit  was  such  that  they  felt 
that  their  interest  was  protected  by  their 
male  voters.  But  the  spread  of  education 
and  knowledge  of  affairs  among  them,  the 
increase  of  those  who  had  no  male  voters 
to  act  for  them,  and  the  pressure  on  them 
to  earn  a  separate  livelihood,  were  circum- 
stances giving  many  of  them  a  conscious- 
ness of  misrepresentation  which  led  to  the 
demand  that  has  been  heard.  Minors  are 
not  allowed  to  vote  because  their  imma- 
turity unfits  them  to  vote  discreetly  and 
wisely,  and  the  identity  of  their  interest 
with  that  of  their  parents  secures  them 
protection  in  the  franchise  of  their  par- 
ents. Alien  residents  are  not  allowed  to 
vote  because  their  allegiance  to  another 


18  LIBERTY  UNDER  LAW 

country  deprives  them  of  that  abiding 
loyalty  to  this  which  should  be  present  as 
a  controlling  influence  upon  every  voter. 
By  the  fifteenth  and  nineteenth  amend- 
ments we  have  so  increased  the  ratio  of 
those  entitled  to  vote  to  the  whole  popu- 
lation that  it  is  now  two-fifths  of  all  in- 
stead of  one  twenty-fifth  as  it  was  when 
the  Constitution  was  adopted.  The  fif- 
teenth amendment  has  been  nullified  in 
eleven  Southern  states  so  that  at  least  a 
million  colored  voters  do  not  vote,  and  in 
all  parts  of  the  country  many  of  all  colors 
and  sexes  who  can  vote  do  not  exercise  the 
privilege.  Probably  a  fourth  of  the  popu- 
lation now  vote  in  a  Presidential  election. 
This  leaves  three-fourths  of  those  who  are 
governed  who  do  not  take  voting  part  in 
the  Government.  Yet  we  have  the  widest 
franchise  possible.  It  is  well  to  bear  this 
in  mind  when  we  are  discussing  practical 
government.  We  must  understand  that 
the  purest  democracy  with  the  widest  pos- 
sible franchise  must  still  be  a  representa- 


LIBERTY  UNDER  LAW  19 

tive  government  in  the  sense  that  one- 
fourth  must  always  speak  for  three- 
fourths  of  the  governed  in  determining 
the  course  of  that  government.  Moreover, 
we  must  know  that  even  under  the  most 
liberal  franchise,  a  majority  and  more  of 
the  governed  have  to  obey  laws  they  take 
no  part  in  making  and  the  minority  have 
to  obey  laws  they  oppose.  The  theory  that 
in  self-government  men  need  obey  only 
the  laws  they  make  is  unsound  in  fact  and 
vicious  in  its  justification  for  lawlessness. 
There  is  no  form  of  government  the  suc- 
cessful operation  of  which  needs  so  much 
implicit  obedience  to  law,  whether  agree- 
able or  not,  as  a  democracy. 

Even  with  the  expansion  of  the  elec- 
torate from  the  one  twenty-fifth  to  one- 
fourth  of  the  people,  the  Federal  Consti- 
tution is  still  substantially  intact  and 
works  smoothly  and  effectively  to  accom- 
plish the  purpose  of  its  f  ramers  and  to  de- 
fend us  all  against  the  danger  of  sudden 
gusts  of  popular  passion  and  to  secure  for 


20  LIBERTY  UNDER  LAW 

us  the  delay  and  deliberation  in  political 
changes  essential  to  secure  considered 
action  by  the  people. 

Ours  is  the  oldest  popular  government 
in  the  world,  and  is  today  the  strongest 
and  most  conservative.  It  is  not  an  oli- 
garchy or  an  aristocracy  under  the  guise 
of  Repubhcan  forms,  and  it  never  was. 
The  people  do  rule  and  always  have  ruled 
in  the  United  States.  They  have  their  will 
but  they  have  it  after  a  wholesome  delay 
and  deliberation  which  they  have  wisely 
-V''  forced  themselves  to  take  under  the  re- 
strictions of  a  Constitution  which,  adopted 
by  however  small  popular  vote,  they  have 
fully  approved  by  more  than  one  hundred 
and  thirty  years  of  acquiescence.  It  is  this  ; 
voluntary  self-restraint  that  has  made 
their  Government  permanent  and  strong;:^ 
It  is  a  fundamental  error  to  seek  quick 
action  in  making  needed  changes  of  policy 
or  in  redressing  wrong.  Nations  live  a 
long  time,  and  a  year  or  five  years  are  a 
short  period  in  that  life.  Most  wrongs  can 


LIBERTY  UNDER  LAW  21 

be  endured  for  a  time  without  catastrophe. 
Reforms  that  are  abiding  are  achieved 
step  by  step.  It  is  better  to  endure  wrongs 
than  to  effect  disastrous  changes  in  which 
the  proposed  remedy  may  be  worse  than 
the  evil.  Often  things  denounced  as  wrongs 
are  not  so.  It  needs  attention  and  delibera- 
tion to  decide  first  that  a  wrong  exists,  and 
second,  what  is  the  right  remedy.  A  popu- 
lar constituency  may  be  misled  by  vigor- 
ous misrepresentation  and  denunciation. 
The  shorter  the  time  the  people  have  to 
think,  the  better  for  the  demagogue.  One 
of  the  great  difficulties  in  carrying  on 
popular  government  is  in  getting  into  the 
heads  of  the  intelligent  voters  what  the 
real  facts  are  and  what  reasonable  deduc- 
tions should  be  made  from  them.  Any 
reasonable  suspension  of  popular  action 
until  calm  public  consideration  of  reliable 
evidence  can  be  secured  is  in  the  interest 
of  a  wise  decision.  That  at  least  was  what 
our  forefathers  thought  in  making  our 


22  LIBERTY  UNDER  LAW 

Federal  Government  and  the  result  has 
vindicated  them. 

Many  contrast  our  system  with  the 
ParHamentary  Government  to  the  dis- 
paragement of  ours.  I  venture  to  think 
that  sober-minded  people  in  countries  with 
responsible  governments,  as  they  are 
called,  are  beginning  to  note  in  these  days 
of  dangerous  and  demoralizing  class  con- 
sciousness the  advantage  of  our  system  by 
which  changes  in  government  are  delayed 
to  respond  to  the  real  voice  of  the  sober 
majority  over  one  in  which  the  tenure  of 
a  ministry  in  power  is  temporary  and 
insecure,  and  in  which  changes  of  minis- 
try follow  in  rapid  succession.  Such  quick 
changes  do  not  make  for  steady  steering 
of  the  ship  of  state  and  create  a  doubt  as 
to  the  future. 

The  effect  of  the  War  has  been  to  shake 
dynasties  to  ruin.  Those  which  have  fallen 
deserved  to  fall.  The  Central  European 
rulers  merited  what  has  come  to  them  be- 
cause they  plotted  to   fasten  upon  the 


LIBERTY  UNDER  LAW  23 

world  the  tj^ranny  of  military  control. 
The  Russian  autocracy  fell  because  the 
War  gave  the  oppressed  Russian  people  in 
all  their  suffering  the  chance  to  rid  them- 
selves of  an  abominably  unjust  rule.  Yet 
in  the  ruins  of  these  empires  we  have  lost 
the  equilibrium  of  obedience  to  law.  It 
could  not  be  otherwise.  In  the  slow  tran- 
sition to  well-ordered  governments  which 
shall  succeed  them,  enemies  of  society, 
plotters  of  anarchy,  destroyers  of  the 
bases  upon  which  modern  civilization  has 
been  built,  have  seized  opportunity  to 
array  the  lowest,  the  most  ignorant,  the 
most  ill-conditioned  against  the  intelligent, 
and  the  responsible.  These  latter  are  the 
saving  part  of  all  society  and  the  hope  of 
the  world's  progress.  Yet  it  is  sought  to 
take  away  their  beneficent  leadership  and 
influence,  to  end  personal  liberty  and  the 
right  of  property,  and  to  establish  a 
bloody  tyranny  of  the  proletariat  under 
the  control  of  a  few  misguided  and  cruel 
zealots.  The  Bolshevists  in  Russia  have 


24.  LIBERTY  UNDER  LAW 

established  themselves  in  power,  have 
spread  their  propaganda  aggressively  in 
other  countries  and  seek  to  concentrate 
into  a  moving  and  destructive  force  the 
unrest  and  dissatisfaction  that  the  neces- 
sary upset  of  economic  conditions  and 
its  accompanying  hardships  have  created 
nearly  everywhere.  By  dint  of  blatant 
lying,  the  utter  failure  of  the  Bolshe- 
vist rule  to  bring  comfort  or  content- 
ment to  the  masses  of  the  people  has 
been  concealed  somewhat  from  the  dis- 
contented elsewhere,  but  it  will  out.  Still, 
danger  from  the  spirit  which  gave  Bol- 
shevism birth  and  life,  continues  through- 
out the  world.  We  have  it  here  but  in  less 
dangerous  force  than  anywhere  else.  It 
is  noisy  here.  It  needs  watching.  It  should 
be  restrained.  It  may  break  out  injuri- 
ously because  modern  lethal  instruments 
give  one  man  or  a  small  group  of  men 
much  greater  power  of  local  destruction 
than  ever  before,  but  the  solid  patriotism, 
conservatism  and  adherence  to  our  sys- 


LIBERTY  UNDER  LAW  26 

tern  of  government  will  make  such  attacks 
only  futile  waves  against  a  stone  wall.  It 
is  at  such  a  time  that  the  valuable  rigidity 
of  our  changes  in  administration  and  our 
intervening  representative  agency,  inter- 
preting and  enforcing  the  popular  will, 
have  their  greatest  value. 

Our  Constitution  has  been  called  too 
individualistic.  It  rests  on  personal  liberty 
and  the  right  of  property.  In  the  last 
analysis,  personal  liberty  includes  the 
right  of  property  as  it  includes  the  right 

of  contract  and  the  right  of  labor.  Our \ 

primary  conception  of  a  free  man  is  one  /lx 
who  can  enjoy  what  he  earns,  who  can 
spend  it  for  his  comfort  or  pleasure  if  he  ^ 
would,  who  can  save  it  and  keep  it  for  his 
future  use  and  benefit  if  he  has  the  fore- 
sight and  self-restraint  to  do  so.  This  is 
the  right  of  property.  Upon  this  right 
rests  the  motive  of  the  individual  which 
makes  the  world  materially  to  progress. 
Destroy  it  and  material  progress  ceases. 
Until  human  nature  becomes  far  more 


/ 


26  LIBERTY  UNDER  LAW 

exalted  in  moral  character  and  self-sacri- 
fice than  it  is  today,  the  motive  of  gain  is 
the  only  one  which  will  be  constant  to 
induce  industry,  saving,  invention  and 
organization,  which  will  effect  an  increase 
in  production  greater  than  the  increase  in 
population.  Indeed  without  it,  production 
will  decrease  and  so  will  the  population, 
because  starvation  and  disease  will  reduce 
it.  With  material  progress,  advance  is  pos- 
sible in  education  and  intelligence,  in  art, 
in  morality  and  religion,  in  the  spiritual. 
To  such  advance  we  must  look  for  the 
antidote  for  the  poison  of  crass  material- 
ism, of  the  selfish  and  cruel  pursuit  of 
wealth,  of  the  ignoble  lassitude  of  luxury 
and  the  evils  of  plutocracy.  But  these  evils 
must  not  blind  us,  as  they  do  blind  many 
. .  well-intentioned,  dreamy  reformers,  to  the 
^  fact  that  personal  liberty  and  the  right  of 
property  are  indispensable  to  any  possible 
useful  progress  of  society. 

The  experiment  which  the  Bolsheviki 
have  been  making  in  Russia  has  been  hard 


LIBERTY  UNDER  LAW  27 

upon  the  poor  Russian  people;  but  as  a 
lesson  to  the  world  on  the  futility  of  com- 
munism, and  of  the  destruction  of  prop- 
erty rights  as  a  means  of  promoting  better 
social  conditions  and  greater  comfort 
among  the  proletariat,  it  is  very  valuable. 
It  is  not  being  lost  upon  our  workingmen. 
It  is  gratifying  to  find  Mr.  Gompers 
denouncing  Bolshevism. 

Our  Government,  our  politics,  and  our  --j 
society  are  not  perfect,  and  abuses  in  one 
form  or  another  persist  that  need  aboli- 
tion. In  the  period  of  enormous  expansion 
of  our  country's  prosperity  during  the 
closing  twenty  years  of  the  last  century, 
the  politics  of  the  country  bade  fair  to 
pass  into  corporate  control.  The  railroads 
then  defied  attempts  to  regulate  them. 
Presidential  campaigns  were  largely  con- 
ducted on  contributions  from  great  cor- 
porations. Congress,  legislatures,  city 
councils  and  local  authorities  were  under 
strong  suspicion  of  yielding  unduly  to 
corporate  influence.  The  situation  called 


28  LIBERTY  UNDER  LAW 

for  a  movement  to  drive  corporations  out 
of  polities.  Such  a  movement  was  under- 
taken and  was  successfuL  Accompanying 
it,  however,  was  a  demand  for  a  change  in 
our  governmental  system  to  prevent  a 
recurrence  of  the  evil.  Direct  and  purer 
democracy,  it  was  said,  would  be  a  perma- 
nent cure.  It  was  urged  that  the  repre- 
sentative system  was  at  fault.  The  people 
as  a  mass  must  be  given  freedom  to  act  at 
once  and  directly  upon  any  evil  in  govern- 
ment. This  was  to  be  done  by  the  Referen- 
dum, the  Initiative,  and  the  Recall. 
Through  these,  any  one  could  initiate  re- 
form legislation  and  the  people  could  pass 
it  without  trusting  to  the  sense  of  duty  of 
a  legislature  or  a  council.  Through  these, 
the  people  might  end  the  official  authority 
and  life  of  an  unsatisfactory  public  offi- 
cial. Moreover,  the  courts  were  to  be  sub- 
jected to  direct  supervision  of  the  people, 
who  might,  after  an  unsatisfactory  deci- 
sion by  a  court,  reverse  the  judgment  by 
vote  and  in  the  same  manner  remove  the 


LIBERTY  UNDER  LAW  29 

judge  from  office.  Nearly  related  to  these 
new  plans  for  popular  government  was 
the  general  primary,  by  which  the  repre- 
sentative system  was  abolished  in  party 
organization  for  the  selection  of  party 
candidates  and  they  were  to  be  chosen  by 
the  votes  of  the  people  in  a  preliminary 
election. 

After  a  decade  or  more  of  trial  and  test 
by  actual  experience,  this  adoption  of  so- 
called  "purer"  democracy  has  not  been  a 
success.  It  has  been  enormously  expensive. 
The  number  of  those  voting  on  proposed 
statutes  has  been  so  much  less  than  those 
voting  for  candidates  at  the  same  elec- 
tions and,  when  the  submission  has  been 
at  a  special  election,  the  total  vote  has 
been  so  small  as  to  show  that  voters  do 
not  think  themselves  fitted  to  express  an 
opinion  on  legislation  which  should  be 
discussed  and  adopted  by  men  elected  for 
the  purpose  to  a  legislative  body.  The  Re- 
call has  not  been  much  used  and  has  only 
served  to  rob  officials  subject  to  it  of  that 


30  LIBERTY  UNDER  LAW 

courage  of  action  needed  to  do  good  work. 
Recall  of  judicial  decisions  and  of  judges 
has  not  been  used  at  all.  This  reform  died 
"a-borning."  The  general  primary  has 
had  a  wide  trial,  but  no  one  intimate  with 
its  working  and  results  can  be  enthusiastic 
over  it.  Legislatures  filled  with  men  who 
have  noted  its  effect  would  like  to  repeal 
the  general  primary  laws  and  restore  the 
party  convention,  but  they  do  not  dare 
to  do  so  lest  their  opponents  make  pohti- 
cal  capital  out  of  it.  They  know  that  it  has 
vastly  increased  the  expense  of  elections. 
It  has  made  two  necessary.  It  has  not  only 
cost  the  public  a  heavy  outlay;  but,  what 
is  worse,  it  has  made  impossible  as  a  candi- 
date for  an  elective  office  every  one  who  is 
not  the  choice  of  the  machine  or  is  not 
independently  wealthy.  No  one  can  afford 
to  be  a  candidate  unless  he  can  count  upon 
the  support  of  the  regular  party  organi- 
zation or  unless  he  can  create  a  personal 
organization,  and  that  costs  much  money. 
It  has  not  destroyed,  it  has  strengthened 


LIBERTY  UNDER  LAW  31 

the  control  of  the  machine;  but  it  has 
taken  from  it  an  obligation  of  responsi- 
bility. In  this  state,  you  have  an  informal 
extra-legal  preliminary  convention  to 
avoid  some  of  the  abuses  of  the  general 
primary.  It  is  to  be  hoped  that  this  mas- 
queraded means  of  neutralizing  the  pri- 
mary may  yield  to  a  courageous  repeal  of 
the  law.  There  is  no  reason  why  the  con- 
vention and  the  selection  of  delegates  to 
it  may  not  be  surrounded  with  the  same 
safeguards  against  corruption  as  a  pri- 
mary. We  shall  then  have  restored  the 
opportunity  for  discussion  and  delibera- 
tion in  the  selection  of  party  candidates. 
The  greatest  evil  the  primary  has  done 
is  the  destruction  of  party  responsibility 
for  the  fitness  of  candidates  and  of  party 
discipline.  In  many  states,  men  who  are 
not  loyal  members  of  the  party  are  en- 
abled to  take  part  in  the  primary  and  to 
seek  to  become  candidates  on  the  party 
ticket.  Democratic  voters  in  a  Republican 
primary  have  not  infrequently  been  able 


32  LIBERTY  UNDER  LAW 

to  foist  on  to  the  Republican  party  ticket 
a  weak  candidate  whom  the  strong  Demo- 
cratic candidate  can  easily  defeat,  and  vice 
versa.  Factions  who  are  not  regular  party 
supporters  at  all  have  put  their  own  men 
on  the  regular  party  ticket  and  destroyed 
party  solidarity.  These  things  are  impos- 
sible in  a  convention  system.  Moreover, 
the  convention  is  needed  to  declare  party 
principles.  To  have  them  declared  by  the 
candidates,  as  is  often  done  under  the 
primary  system,  is  to  put  a  premium  on 
trimming  and  still  further  to  impair  the 
responsibility  and  utihty  of  parties. 

In  my  college  days,  I  was  wont  to  think 
of  parties  and  partisanship  as  a  necessary 
evil  and  something  which  ought  to  be 
abolished,  if  possible,  and  of  the  man  who 
held  himself  aloof  from  party  as  the  model 
to  be  followed.  Washington,  in  his  fare- 
well address,  deplores  party  and  faction, 
and  evidently  hoped  for  a  fading  out  of 
party  in  the  carrying  on  of  the  Govern- 
ment. I  am  satisfied,  after  considerable 


LIBERTY  UNDER  LAW  33 

opportunity    for    observation,    that    two 
great  parties  are  the  greatest  aids  to  the 
successful  administration  of  popular  gov- 
ernment. Without  them,  the  proper  inter- 
pretation of  the  popular  will  into  effective 
governmental  action  becomes  very  diffi- 
cult.  The  division  of  voters  into   small     ^. 
groups  with  no  majority  control  by  any         i   rL^^ 
one  paralyzes  a  government  into  doing         J    •■ 
nothing,  into  weak  compromises,  into  a  v^^ 

hand-to-mouth  life.  Division  into  groups  3 

means  parties  based  on  class  and  faction. 
It  means  the  willingness  of  each  to  sacri- 
fice the  general  interest  of  the  country  to 
the  achievement  of  a  particular  object. 
Parties  based  on  class  cleavage  are  inimi- 
cal to  broadly  patriotic  government  for 
the  benefit  of  all  the  people.  Two  great 
parties  mean  a  cleavage  down  through  all 
the  strata  of  society,  the  wealthy,  the  edu- 
cated, the  moderate  circumstanced,  the 
business  men,  the  workingmen,  and  the 
farmers.  The  group  system  tends  to  par- 
ties  with   a   horizontal   cleavage   of  the 


\ 


34  LIBERTY  UNDER  LAW 

strata  of  society  and  we  find  the  farmers 
in  one  party,  the  workingmen  in  another, 
the  business  men  in  another,  the  manufac- 
turers in  another,  each  contending  for  its 
special  interest  and  ignoring  the  welfare 
of  society  as  a  whole.  Normal  party  feel- 
ing in  one  of  two  great  parties  tends  to 
neutralize  this  class  and  selfish  spirit,  and 
prompts  a  consideration  of  the  interest  of 
all  classes  of  the  people  represented  in  the 
party.  One  great  party  makes  the  other 
better  by  its  criticism  and  opposition.  ,. 
Each  puts  the  other  on  its  good  behavior; 
but  when  there  are  many  small  groups, 
each  for  itself  and  its  selfish  object,  there 
is  no  considerable  stimulus  to  good  be- 
havior on  the  part  of  any  group.  The 
group  system  is  the  opportunity  of  the  ^ 
sociahst,  the  radical,  the  communist.  It  is 
the  hope  of  the  crank  extremist.  In  every 
district  where,  though  small  in  number,  a 
group  can  exercise  a  balance  of  power,  it 
bends  the  legislator  to  its  will  by  threats. 
With  no  sense  of  responsibility  as  to  gen-  J 


LIBERTY  UNDER  LAW  35 

eral  policies  and  the  common  good,  it 
pushes  its  purpose.  It  thus  sometimes  hap- 
pens that  legislation  is  secured  which  the 
majority  of  the  people  would  not  favor  on 
its  merits  but  for  which  a  comparatively 
small  minority  is  willing  to  sacrifice 
everything. 

I  do  not  wish  to  deprecate  the  course  of 
those  broad-minded  citizens  of  intelligent 
discrimination  and  patriotic  purpose  who, 
on  grounds  of  general  welfare,  sometimes 
support  one  party  and  sometimes  the 
other.  They  are  essential  in  our  system. 
They  throw  the  election  one  way  or  the 
other  as  they  vote.  They  do  not  exercise 
influence  within  the  party  but  they  have  a 
most  wholesome  influence  from  without. 
But  experience  has  shown  that  in  normal 
times,  under  natural  impulses,  many  men 
attach  themselves  to  one  or  the  other  of 
the  great  parties.  That  is,  for  the  reason 
stated,  a  good  thing.  A  great  party  is  of 
necessity  broad  in  its  view  of  the  country's 
welfare  and  from  selfish  motives  some- 


36  LIBERTY  UNDER  LAW 

what  careful  in  meeting  its  responsibility. 
Those  who  make  up  its  rank  and  file  in- 
sensibly acquire  the  same  point  of  view. 
One  of  the  essential  aids  to  successful 
popular  government  is  great  leaders,  and 
confidence  in  them  is  stimulated  by  the 
existence  of  parties. 

I  concede  the  evils  which  arise  from 
hidebound  partisanship  at  times.  I  am 
not  blind  to  the  motives  of  fancied  politi- 
cal expediency  which  lead  such  parties 
into  promotion  of  measures  which  are  not 
best  adapted  to  the  needs  of  the  country. 
They  often  put  men  in  power  who  are 
neither  the  ablest  nor  the  highest-minded 
of  men  available.  They  often  trim  when 
they  should  be  courageous  to  meet  an 
issue.  But  what  I  am  pressing  on  you  is 
that,  constituted  as  they  are  of  all  sorts 
and  conditions  of  men,  they  are  much 
more  likely  to  be  American  in  their  view 
and  purpose,  much  more  likely  to  be  con- 
siderate of  the  whole  country,  and  much 
less  likely  to  be  narrowly  moved  by  the 


LIBERTY  UNDER  LAW  87 

ambition  of  a  selfish  faction  than  the  small 
"one-idea'd"  group  of  whose  dangerous 
purposes  I  have  spoken. 

Allegiance  to  a  party  should  never  lead 
one  consciously  to  countenance  wrong  or 
injury  to  the  public  weal;  but  as  we  note 
the  live  dangers  to  our  Republic,  we  are 
forced  to  admit  that  excessive  partisan- 
ship is  not  now  one  of  them,  and  that  the 
institution  and  maintenance  of  great  par- 
ties is  an  antidote  for  class  consciousness 
and  selfish  factional  diversion  of  national 
funds  and  energy  into  class  preferment 
and  away  from  the  general  good.  We  are 
still  healthy.  Organized  labor  seeks  politi- 
cal ends  at  times.  Often  it  presses  for  use- 
ful legislation  and  secures  it.  Then  it  seeks 
to  defeat  legislators  and  others  who  have 
not  bent  the  knee  to  its  class  demands.  It 
is  gratifying  to  note  that  the  leaders  do 
not  control  the  labor  vote  and  that  many 
workingmen  refuse  when  they  enter  the 
voting  booth  to  bear  a  class  label.  They  are 
Republicans  or  Democrats.  They  look  at 


88  LIBERTY  UNDER  LAW 

the  election  from  a  broad  American  stand- 
point and  vote  their  judgment.  The  man 
who  carries  the  labor  vote  in  his  pocket 
is  a  bogy.  Nor  will  the  women  constitute 
themselves  a  political  party.  No  party  can 
live  founded  on  sex  alone,  now  that  sex  is 
eliminated  as  a  basis  for  political  discrimi- 
nation. Women  voters  will  now  become 
Democrats  or  Republicans  as  they  ought 
to  be,  and  will  be  guided  by  general 
country- wide  considerations  in  the  casting 
of  their  ballots. 

The  welfare  of  the  community  has  been 
emphasized  in  modern  days,  and  the  ruder 
Anglo-Saxon  doctrine  of  individual  inde- 
pendence and  every  man  for  himself  has 
properly  yielded  to  a  sense  of  greater  re- 
sponsibility of  the  community  for  its 
members.  With  this  has  come  a  greater 
qualification  of  the  enjoyment  of  indi- 
vidual rights  of  liberty  and  property  in 
the  interest  of  the  conmiunity  as  a  whole. 
There  was  always  such  a  qualification 
recognized  by  the  courts  and  enforced  by 


LIBERTY  UNDER  LAW  39 

the  Government,  but  the  change  in  our 
social  and  physical  conditions  of  life  has 
emphasized  it  and  enlarged  it  to  conform 
to  that  change.  As  population  has  grown 
and  great  masses  of  people  are  concen- 
trated in  small  areas,  greater  health  pre- 
servatives are  necessary,  more  careful 
provision  for  feeding  the  people  from 
long  distances  has  to  be  made,  and  all  the 
machinery  for  maintaining  them  in  com- 
fort becomes  more  complicated,  and  the 
preservation  of  free  currents  of  this  kind 
becomes  more  important  and  a  matter  of 
government  responsibility. 

The  right  of  property  and  the  right  of 
labor,  when  used  in  great  combinations, 
have  furnished  means  of  extortion,  op- 
pression, and  obstruction  which  Congress 
has  passed  laws  to  restrain  and  punish, 
and  the  courts  have  sustained  such  laws. 

Social  groups  in  a  great  community  be- 
come more  interdependent.  One  member 
cannot  be  as  independent  of  another  as 
when  they  lived  in   a  wilderness   miles 


40  LIBERTY  UNDER  LAW 

apart.  Our  constitutional  system  has  been 
easily  elastic  in  these  regards,  and  courts 
have  not  failed  to  apply  it  to  conform  to 
the  needs  of  the  community.  These  chang- 
ing conditions  have  led  some  reformers  to 
condemn  what  they  call  the  excessive  indi- 
vidualism of  the  Constitution.  I  confess  I 
do  not  follow  them.  The  rights  of  personal 
liberty  and  of  property  as  protected  by 
the  courts  are  not  obstructive  to  any  rea- 
sonable qualification  of  these  rights  in  the 
interest  of  the  community.  Indeed  we  may 
well  question  whether  the  paternalistic 
enthusiasm  of  such  reformers  has  not  gone 
too  far.  The  strength  of  the  American  in 
the  past  has  been  in  his  independence  and 
self-reliance.  He  asked  only  an  equal 
chance  with  others  and  was  content  to 
abide  the  results  of  his  own  efforts.  It  was 
this  spirit  which  carried  our  country  on  to 
its  present  marvellous  development.  A 
weakening  sense  of  dependence  on  the 
Government,  on  the  one  hand,  andi  an 
excessive  confidence  that  legislation  can 


u 


LIBERTY  UNDER  LAW  41 

do  anything,  on  the  other,  have  had  a  dan- 
gerous tendency  to  minimize  this  inde- 
pendence and  self-reliance  and  have  pro- 
duced tons  of  statutory  laws  under  which 
public  money  is  wasted  in  futile  attempts 
at  their  execution,  and  respect  for  all  laws 
is  injured  by  the  ineffectiveness  of  so 
many.  This  disease  of  excessive  legisla- 
tion has  been  rendered  more  epidemic  by 
the  outbreak  for  pure  democracy  in  the 
form  of  the  Referendum  and  the  Initiative. 
Through  them  private  citizens,  who  con- 
ceive a  panacea,  can,  by  securing  the  nec- 
essary subscribers  to  a  petition,  impose 
upon  a  suffering  public  the  obligation  and 
cost  of  passing  on  the  ill-digested  product 
of  ignorant,  impracticable,  but  active  and 
enthusiastic  minds.  Legislators  learn  that 
their  industry  and  public  service  are  meas- 
ured by  the  glorious  objects  recited  in  the 
titles  of  their  bills  rather  than  by  the 
practical  working  of  them  as  laws  for 
good.  Hence  their  fecundity  in  bills  and 
their  eagerness  in  pressing  them  into  law. 


42  LIBERTY  UNDER  LAW 

The  amount  of  useless  legislation  in  the 
states  of  this  country  is  appalling  and  is 
one  of  the  most  distressing  signs  of  the 
times. 
I  The  lesson  must  be  learned,  expensive 
as  it  is  proving  to  be,  that  there  is  only  a 
limited  zone  within  which  legislation  and 
governments  can  accomplish  good.  We 
cannot  regulate  beyond  that  zone  with 
success  or  benefit.  Governments  are  not 
adapted  to  do  business  as  are  individuals 
prompted  by  their  gain  in  economy  and 
efficiency,  and  should  not  be  so  burdened. 
^j^  ^^  Failures  in  government  ownership  and 
operation  of  enterprises,  normally  and 
legitimately  adapted  to  private  conduct, 
confront  us  on  every  side  and  should 
teach  us  their  lesson. 

If  we  do  not  conform  to  human  nature 
in  legislation  we  shall  fail.  We  can  waste 
money  in  helping  individuals  to  a  habit  of 
dependence  that  will  weaken  our  citizen- 
ship. We  can,  by  passing  laws  which  can- 
not be  enforced,  destroy  that  respect  for 


LIBERTY  UNDER  LAW  43 

laws  and  habituated  obedience  to  law 
which  has  been  the  strength  of  people  of 
English  descent  everywhere. 

We  must  stop  attempting  to  reform 
people  by  wholesale.  It  is  the  individual 
upon  whom  our  whole  future  progress 
depends.  In  giving  and  securing  scope  for 
his  ambition,  energy,  and  free  action  our 
constitutional  system  has  its  chief  merit, 
whatever  would-be  reformers  say. 

It  goes  without  saying  that  if  the  gov- 
ernment of  the  people  would  save  itself 
it  must  secure  to  the  individual  person  the 
education  indispensable  to  his  exercise  of 
wide  and  wise  discretion  as  a  constituent 
member  of  the  government.  Our  public 
school  system  is  one  of  the  foundation 
rocks  of  our  community  and,  in  theory  at 
least,  has  always  been  declared  by  us  to 
be  so.  It  is  not  possible  to  give  every  man 
and  woman  a  university  education  or  even 
a  secondary  education,  but  it  is  possible  to 
give  him  a  thorough  primary  or  common 
school  education  upon  which,  in  the  uni- 


44  LIBERTY  UNDER  LAW 

versity  of  his  life  experience,  he  can  build, 
as  many  of  our  greatest  men  have  builded 
before  him.  We  have  always  prided  our- 
selves on  our  public  schools;  but  we  had 
a  great  shock  to  that  pride  when  we  exam- 
ined the  statistics  of  illiteracy  revealed  by 
the  rigid  examination  of  men  enlisted  or 
drafted  into  the  army  for  the  late  war. 
We  found  a  most  distressing  number  of 
men  who  could  not  read  or  write  among 
the  native  whites,  of  our  citizenship.  It  is 
notorious,  too,  that  our  teachers  are  not 
properly  paid,  and  that,  therefore,  they 
are  not  properly  prepared  to  teach.  We 
have  a  heavy  task  before  us  but  we  must 
do  it.  Not  only  is  there  this  large  number 
of  native  whites  but  the  negroes  and  the 
foreign  born  greatly  increase  the  number 
needing  especial  attention.  It  is  so  great 
a  work  that  the  agency  of  the  National 
Government  must  be  invoked  to  help  in 
some  practical  and  unobstructing  way.  In 
the  wealthier  states  such  aid  is  unneces- 
sary, but  in  the  states  where  illiteracy  is 


LIBERTY  UNDER  LAW  45 

more  prevalent,  public  funds  are  not  so 
available  from  state  resources,  and  na- 
tional assistance  may  be  properly  ex- 
tended. The  standard  of  agriculture  in 
this  country  has  been  distinctly  raised  by 
the  work  of  the  Federal  Agricultural 
Department  although  the  Federal  gov- 
ernment has  no  constitutional  control  of 
agriculture.  Why  may  we  not  have  the 
standard  of  thoroughness  improved  in  the 
common  school  system  by  federal  activity 
even  though  the  Central  Government  has 
no  direct  authority  in  matters  of  educa- 
tion? 

With  the  native  born  as  well  as  with  the 
foreign  born  we  must  inculcate  American- 
ism in  its  true  sense.  The  greatness  of  the 
country,  the  good  it  does  its  citizens,  the 
freedom  it  secures  them,  the  equality  of 
opportunity  evident  in  the  success  of  the 
humblest  born  and  the  leadership  of  the 
self-made,  must  all  be  enforced  as  a  basis 
of  grateful  love  of  the  country.  But  more 
than  all  should  be  pressed  into  the  mind 


46  LIBERTY  UNDER  LAW 

and  soul  of  each  boy  and  each  girl  that  he 
or  she  is  the  country  and  that  as  he  or  she 
shall  pursue  an  honest  independent  indus- 
trious moral  life,  he  or  she  will  be  making 
for  a  greater  America. 

The  great  war  relieved  the  minds  of 
many  who  had  come  to  think  that  our 
great  prosperity  and  our  increase  in 
wealth  and  the  spread  in  all  classes  of 
creature  comforts  to  the  point  of  making 
former  luxuries  necessities,  had  sapped 
the  foundations  of  love  of  country  and  the 
spirit  of  patriotic  self-sacrifice  in  our 
youth.  The  great  world  struggle  evoked 
the  spirit  of  '76  and  '61  from  the  young 
men  and  women  of  our  country  in  a  thrill- 
ing way  and  the  selfishness  and  love  of 
comfort  disappeared  in  the  triumphant 
energy  and  courage  and  effectiveness  of 
Young  America.  Now  we  have  had  a 
reaction.  Now  the  shallows  are  murmur- 
ing again.  Now  the  pro-German  and  the 
Irish  Extremist  occupy  the  stage  with  "an 
other  worldliness"  seeking  to  disturb  our 


LIBERTY  UNDER  LAW  47 

friendly  relations  with  our  allies.  Such 
manifestations  are  misleading  as  to  the 
real  sentiment  of  the  country  while  the 
deeps  remain  dumb.  The  Reds  are  again 
making  night  hideous  with  their  threats 
and  their  prognostications  of  evil,  and 
their  attempts  to  stir  class  feeling  and  in- 
jurious discontent.  Therefore,  it  is  that 
in  our  public  education,  class  conscious- 
ness and  "other  worldliness"  should  be 
fought  at  every  turn.  The  breaking  down 
of  the  fancied  class  barriers  by  the  energy, 
ability,  and  independence  of  the  humblest 
should  be  the  text  of  every  homily.  So,  too, 
should  be  the  welfare  of  the  United  States 
and  its  responsibility  to  its  fellow  mem- 
bers of  the  family  of  nations.  The  les- 
son of  obedience  to  law  and  government 
and  political  self-restraint  and  discipline 
should  be  an  easy  one  to  teach  in  schools 
and  to  exemplify.  Respect  for  authority 
can  be  lost  by  lack  of  discipline  and  can  be 
strengthened  by  its  exercise.  Liberty, 
abiding  for  each  person,  is  impossible  un- 


48  LIBERTY  UNDER  LAW 

less  it  be  ordered  liberty.  Without  law  and 
conformity  to  it,  we  shall  have  license  and 
not  law,  and  anarchy,  inequality  and 
tyranny,  and  not  liberty.  In  no  respect  do 
the  lovers  of  America  feel  more  concern 
than  in  the  outbursts  of  lawlessness,  not 
so  much  in  personal  crime,  but  in  the 
manifestation  of  the  mob  spirit  and  indif- 
ference to  the  enforcement  of  law.  Why 
can  we  not  surround  our  youth  with  the 
atmosphere  of  respect  for,  and  obedience 
to,  authority?  That  is  self-government. 
Without  it,  popular  government  is  a  fail- 
ure, and  our  constitutional  system  is  a 
hollow  mockery. 

Not  only  is  education  necessary  but 
even  more  essential  is  moral  training — 
a  sense  of  responsibility  for  what  we  do — 
a  standard  of  action  which  satisfies  con- 
science. It  can  hardly  be  separated  from 
religion.  It  is  unfortunate  that  we  cannot 
well  unite  religion  and  moral  training  in 
the  instruction  in  our  public  schools.  Men 
may  be  moral  and  not  be  religious,  but 


LIBERTY  UNDER  LAW  49 

they  are  exceptions.  Religion  is  the  great 
stay  of  morahty.  It  is  the  conscious  study 
and  feeling  of  responsibility  to  God.  It  is 
a  dwelling  on  our  relations  and  duties  to 
God.  As  Matthew  Arnold  puts  it,  it  is  our 
relation  to  the  Being,  not  ourselves,  who 
makes  for  righteousness.  Its  corner  stone 
is  unselfishness.  It  is  the  antidote  for  class 
hatred.  It  makes  for  the  love  of  human 
kind.  It  prompts  patriotism.  It  lifts  one 
out  of  the  sordid  view  of  things.  It  broad- 
ens our  horizon.  It  reveals  true  American- 
ism. And  it  reconciles  individual  freedom 
and  responsibility  with  respect  for  Divine 
Authority.  That  is  why  the  anarchist  and 
the  Bolshevist  will  have  nothing  of  reli- 
gion. The  churches  of  the  community  are 
the  great  and  useful  agencies  for  stimulat- 
ing religion  and  its  practices.  They  need 
encouragement.  Every  university  should 
encourage  its  students  to  the  worship  of 
God.  Look  over  the  world's  history  and 
tell  me  the  nations  who  deserved  well  of 
the  human  race  for  their  progress,  and  you 


50  LIBERTY  UNDER  LAW 

will  find  that  religion  was  the  moving 
cause  of  their  effort,  their  sacrifice  and 
their  success.  As  long  as  the  United  States 
remains  a  religious  nation,  there  is  no 
danger  of  the  corrosion  of  Bolshevism, 
Communism  or  any  destructive  and  cruel 
cult.  Christian  civilization  rests  ultimately 
on  the  inspiration  of  the  religious  spirit. 
It  is  that  which  will  render  innocuous  and 
neutralize  the  evil  effect  of  the  selfishness 
which  is  necessary  to  give  energy  and 
thrift  and  industry  to  material  progress. 
It  is  that  spirit  which  sweetens  life  with 
the  love  of  family,  of  country,  and  of 
God.  It  is  the  preservation  of  this  spirit 
of  the  fatherhood  of  God  and  the  brother- 
hood of  man  upon  which  we  most  depend 
for  the  maintenance  of  useful  constitu- 
tional government. 

I  have  thus  tried  to  follow  the  text  of 
the  donor  of  this  Foundation.  I  have  at- 
tempted to  give  the  essence  of  our  consti- 
tutional system  and  to  describe  how  it  uses 
democracy  to  attain  the  welfare  of  the 


LIBERTY  UNDER  LAW  61 

people  and  the  greatest  good  for  the 
greatest  number.  I  have  pointed  out  the 
errors,  as  I  conceive  of  them,  of  many- 
earnest  supporters  of  what  they  call  pure 
democracy,  chiefly  in  forgetting  that 
democracy  is  but  a  means  to  an  end,  just 
as  liberty  is.  The  end  is  the  happiness  of 
all  individuals.  To  be  useful,  democracy 
and  liberty  must  be  regulated  to  attain 
this  end  and  not  to  defeat  it.  I  have  em- 
phasized the  dangers  against  which  we 
must  guard  our  noble  state  and  civiliza- 
tion, and  have  urged  improved  education 
and  stimulated  religion  as  most  impor- 
tant agencies  in  defending  against  those 
dangers. 

I  am  an  optimist.  I  believe  profoundly 
in  our  constitutional  system  and  its  value 
to  us,  because  I  believe  it  is  the  expression, 
accurate  and  responsive,  of  our  American 
people.  As  it  has  preserved  our  liberties 
and  happiness  in  the  past,  so  may  it  serve 
us  in  our  greater  difficulties  and  achieve- 
ments of  the  future! 


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